Judge Grants Preliminary Injunction Against Federal Social Cost Of GHG Order
February 15, 2022
by Paul Ciampoli
APPA News Director
February 15, 2022
A Louisiana-based federal judge agreed with a collection of states that they will be harmed as a result of an early 2021 Biden Administration move to set interim estimates for the social cost of greenhouse gas emissions for federal agencies to use. The judge granted a motion for a preliminary injunction filed by the 10 states.
In April 2021, 10 states filed a complaint against the federal government seeking declaratory and injunctive relief as a result of Executive Order 13990 (EO 13990).
EO 13990 reinstated the Interagency Working Group on Social Costs of Greenhouse Gas Emissions (SC-GGE). In addition, the Interagency Working Group was directed to publish interim estimates for the social cost of carbon, nitrous oxide, and methane — collectively referred to as SC-GHG estimates — for agencies to use when monetizing the value of changes in greenhouse gas emissions resulting from regulations and other relevant agency actions.
The states that filed the complaint are Louisiana, Alabama, Florida, Georgia, Kentucky, Mississippi, South Dakota, Texas, West Virginia, and Wyoming.
The states sought injunctive and declaratory relief on three grounds:
- First, they asserted that the SC-GHG estimates violate the procedural requirements of the Administrative Procedure Act (APA) as a substantive rule that did not undergo the requisite notice-and-comment process.
- Second, the states claimed that President Biden, through EO 13990, and the Interagency Working Group lack the authority to enforce the estimates as they are substantively unlawful under the APA and contravene existing law.
- Third, the states maintain that the government defendants acted beyond any congressional authority by basing regulatory policy upon global considerations.
The court added a fourth prohibition to prevent the government from relying upon or implementing Section 5 of EO 13990 in any manner.
Section 5 required the government to form the Interagency Working Group, set preliminary SC-GHG values by February 20, 2021, and develop final values by January 1, 2022. The order also directed the government to “return to the guidance of Circular A-4 in conducting regulatory analysis.”
Circular A-4 provides the Office of Management and Budget’s guidance to federal agencies on the development of regulatory analysis.
Court “Not Opining” On Scientific Issues
“To be clear, the court is ruling only on the actions of the federal agencies and whether the agencies, by implementing the estimates and considering global effects — violate the APA and whether President Biden upon signing EO 13990, violated the separations of powers clause of the United States Constitution,” wrote Judge James Cain of the U.S. District Court Western District of Louisiana-Lake Charles Division.
The court “has the authority to enjoin federal agencies from implementing a rule — mandated by an executive order or not — that violates the APA or violates the separation of powers clause,” Cain said.
“Importantly, the court is not opining as to the scientific issues regarding greenhouse gas emissions, their effects on the environment, or whether they contribute to global warming.
Executive Order Contradicts Intent Of Congress
Cain determined that EO 13990 contradicts Congress’ intent regarding legislative rulemaking by mandating consideration of the global effects. “The court further finds that the President lacks power to promulgate fundamentally transformative legislative rules in areas of vast political, social, and economic importance, thus, the issuance of EO 13990 violates the major questions doctrine.”
That doctrine consists of two steps for the court to determine: (1) if the assertion of executive authority implicates matters of vast economic and political significance, and (2) if Congress has expressly and specifically delegated authority over the issue to the Executive.
In addition, the court found that EO 13990 was promulgated without complying with the APA’s notice and comment requirements.
The states argued that they easily meet the threshold requirement that if an injunction is not issued, they will suffer inevitable and irreparable harm.
The states noted that they are substantial producers of energy and rely upon tax revenues from energy production to perform their sovereign duties. As such, the increased SC-GHG estimates will cause regulatory standards affecting air quality, energy efficiency, power plant regulation to increase in stringency, which will directly harm the economies and revenues of the states.
Moreover, they said that Texas, Louisiana, Kentucky, Florida, Georgia, South Dakota, Mississippi, Alabama, West Virginia, and Wyoming and their citizens will all be imminently harmed by EO 13990 and the SC-GHG estimates by causing increased energy costs.
The states have sufficiently identified the kinds of harms to support injunctive relief, Cain said in his order.
Moreover, the court determined that the states have made a clear showing of an injury-in-fact, and that such injury cannot be undone through monetary remedies, “such that they need immediate relief now, lest they be unable to ever obtain meaningful judicial relief in the future.”
The court “agrees that the public interest and balance of equities weigh heavily in favor of granting a preliminary injunction,” wrote Cain on Feb. 11 in granting the motion for preliminary injunction in its entirety.
The American Public Power Association anticipates the United States will quickly seek appeal from the U.S. Court of Appeals for the Fifth Circuit, given the far-reaching impacts of the order on the Biden Administration’s SC-GHG initiatives.
Power Demand In Texas Grid Peaked At 68,862 MWh During Recent Cold Snap
February 15, 2022
by Paul Ciampoli
APPA News Director
February 15, 2022
During the recent cold snap in Texas, demand for electricity in the Electric Reliability Council of Texas (ERCOT) peaked at 68,862 megawatthours (MWh), slightly below the peak demand of 69,215 MWh during a February 2021 winter storm that caused widespread power outages in the state, the Energy Information Administration (EIA) reported.
“However, this winter’s peak was still below the demand ERCOT forecast for February 2021 before widespread outages began, which resulted in lower actual demand than forecast,” EIA said.
This winter, demand on the peak day of February 4 was much lower than ERCOT’s day-ahead forecast, largely because temperatures were warmer than predicted.
“Unlike in February 2021, this winter’s storm didn’t cause major declines of natural gas production in Texas, and natural gas-fired power plants in Texas maintained their fuel supply during the cold weather,” EIA said.
In February 2021, weather-related production issues reduced peak natural gas production by 16 billion cubic feet (Bcf), according to data from IHS Markit, compared with a 3 Bcf decline in peak dry natural gas production this winter.
In addition, renewable generators, largely wind, maintained a high level of output during the coldest periods this winter, when demand for space heating was the highest, according to EIA.
Coal-fired and nuclear units did not experience outages, which occurred in February 2021.
In response to the ample supply, the ERCOT prices for wholesale electricity in the real-time market were below $100 per MWh during the recent storm, in comparison to prices that were as high as $9,000 per MWh during the February 2021 storm.
ERCOT Reforms
ERCOT in early February noted that it has implemented many reforms to increase the reliability of the Texas grid, including:
- Inspected generating units and transmission and distribution facilities for weatherization to comply with new PUC requirements. ERCOT has inspected hundreds of electric generation units and transmission facilities and found only three with any deficiencies;
- Requiring CEO attestations of weather readiness. A rule change implemented last year requires all market participants who own or operate generation resources and/or transmission/distribution power lines to submit a letter signed by their CEO twice a year certifying their companies have completed their weatherization preparations to protect the electric grid for the summer and winter seasons;
- Taking a more conservative approach to operating the grid. ERCOT said it is increasing operational reserves to ensure adequate generation is available to Texas homes and businesses and is bringing more generation online sooner if it is needed to balance supply and demand. The grid operator is also purchasing more reserve power, especially on days when the weather forecast is uncertain;
- Assessing on-site fuel supplies. ERCOT has assessed the on-site fuel supply for some gas-fired generators; and
- Performing unannounced testing of generation resources. This testing helps verify that generators have provided accurate information about their availability.
Minnesota Public Power Utility Focuses On Bolstering Reliability
February 15, 2022
by Paul Ciampoli
APPA News Director
February 15, 2022
Minnesota public power utility Blue Earth Light & Water is pursuing a number of projects that will bolster its reliability.
In an interview with Public Power Current, Tim Stoner, General Manager of the Blue Earth, Minn., utility offered details on the projects.
One project involves a transformer upgrade. A second project is a reconductoring of a feeder, while the third project involves building out a looping project for two existing distribution transformers.
“The whole reason for all three of these projects” is for reliability purposes, Stoner noted.
Blue Earth Light & Water is a Diamond level Reliable Public Power Provider (RP3) as designated by the American Public Power Association (APPA). Diamond level is the highest level under the RP3 program.
APPA’s RP3 program is based on industry-recognized leading practices in four important disciplines: Reliability, safety, workforce Development and system Improvement.
Supply chain issues remain a concern for Stoner as it relates to the projects. “I don’t think we have a quote for a single transformer right now that’s under 52 weeks,” he said.
APPA and the Large Public Power Council recently provided comments including recommendations to the Department of Energy (DOE) in response to a request for information that DOE issued on energy sector supply chain issues.
Additional information about the utility is available here.
West Virginia Governor Signs Bill That Lifts Ban On Nuclear Power In The State
February 15, 2022
by Paul Ciampoli
APPA News Director
February 15, 2022
West Virginia Gov. Jim Justice recently signed into law a bill that lifts the state’s ban on the construction of nuclear power plants.
“I call upon our Legislature to continue to research and monitor nuclear initiatives around the nation to ensure appropriate regulatory or safety measures are in place as new technologies are developed and implemented,” wrote Justice.
He said that the legislation, Senate Bill 4, “is a positive step in modernizing our state’s regulatory environment, but we must work to ensure only positive outcomes from this legislation by continually evaluating any concerns and implementing best practices in any regulation that may be required.”
Rochelle, Illinois, Shop Local Credit Program With Public Power Utility Well Received By Customers
February 14, 2022
by Paul Ciampoli
APPA News Director
February 14, 2022
A credit program aimed at supporting small businesses in Rochelle, Ill., through a credit on Rochelle Municipal Utilities (RMU) bills has been quite successful, said Michelle Pease, Community Development Director for the City of Rochelle.
“The Shop Local RMU credit program is an economic tool adopted by the City of Rochelle to encourage our residents and businesses to patronize small local businesses who were forced to close during the COVID-19 pandemic,” noted Pease.
Participating in the Shop Local RMU credit program provides a $60 reimbursement in the form of a credit on a future Rochelle Municipal Utility (RMU) bill for qualifying purchases at retail/service shop and restaurant establishments located within the RMU service territory.
Each residential household, commercial/retail and industrial brick and mortar business within RMU’s service territory qualifies.
The program started in spring 2020 and was designed to be an economic tool adopted by the City of Rochelle to encourage residents to patronize local businesses who were forced to close during the COVID-19 pandemic. “We wanted to help our local businesses make it through the forced closings due to the pandemic,” said Pease.
She said that the program was very successful and well received by residents and business owners. The program started out allowing three credits ($180) per household, then went to unlimited credits, then back to only three credits between August 1, 2021 to December 31, 2021. The program ended December 31, 2021.
“I would recommend programs like this during times of crisis and certainly 2020-2022 has been a time of crisis,” said Jeffrey Fiegenschuh, City Manager for the City of Rochelle.
“Our utility is uniquely positioned to be able to afford such a program. Our finances are stable, and our load continues to grow,” he said.
Although there was a significant cost associated with funding the program, “the goal of our Mayor and City Council was to assist our local businesses affected by state mandated closures. This program and others funded by the city (direct aid grants) helped make this city council priority a reality. Of all the programs I was able to be a part of in my career, this program is one that I am most proud of.” he said.
GAO Asked To Review NRC’s Advanced Nuclear Approval Process
February 14, 2022
by Peter Maloney
APPA News
February 14, 2022
Two members of Congress are calling on the Government Accountability Office (GAO) to assess whether the Nuclear Regulatory Commission (NRC) is equipped to approve in a timely fashion advanced nuclear reactors that are vying to come to market.
“Recent NRC actions concerning certain licensing activities raise questions about the agency’s capability to manage effectively first-mover applications for new, advanced technologies,” Senator Shelley Moore Capito (R-W.Va.), and Congresswoman Cathy McMorris Rodgers (R-Wash.) wrote in a Feb. 4 letter to the GAO.
Capito and Rodgers are, respectively, the Ranking Member of the Senate Environment and Public Works Committee and the Republican Leader of the House Energy and Commerce Committee.
The Department of Energy’s Advanced Reactor Demonstration Program (ARDP) has been pursuing new reactor designs that are expected to be smaller, safer, and more economically competitive than the Light Water Reactor technology currently in use.
The Department of Energy’s efforts are bolstered by legislation, including the 2018 Nuclear Energy Innovation and Modernization Act and the recently enacted Infrastructure Investment and Jobs Act that appropriated nearly $2.5 billion for the DOE’s advanced nuclear program.
A key component of moving advanced reactor designs forward is implementation of a more streamlined regulatory process. The Nuclear Energy Innovation and Modernization Act, for example, directed the NRC to develop a regulatory framework to license and oversee advanced reactor technologies no later than Dec. 31, 2027, the letter noted. But recent NRC actions “concerning certain licensing activities raise questions about the agency’s capability to manage effectively first-mover applications for new, advanced technologies,” the letter’s authors wrote.
The letter cites a 2019 report to Congress, in which the NRC stated it is “fully capable of reviewing and making safety, security, or environmental findings on an advanced reactor design if an application were to be submitted today.” The authors noted, however, that the same report acknowledged that “the efficiency of existing processes and requirements could be improved.” And in a draft white paper, the authors noted, NRC staff said the agency would “leverage flexibilities in existing regulations and identify options for changes to regulatory requirements that could provide additional flexibilities.”
In the letter, the authors said they “seek to understand if and how those improvements are being pursued and how NRC staff, in communication with the license applicant, will leverage existing flexibilities.”
Among other things, Capito and Rodger are asking the NRC to explain how it is:
- Assessing various organizational approaches to establish the most effective structure to review applications efficiently;
- Implementing flexible regulatory approaches to review forthcoming applications, and
- Working with license applicants during pre-application and initial license review phases to communicate key issues.
A bill approved in February lifted a 1996 ban on nuclear power production in West Virginia. Shortly after the bill was signed into law, Capito, during a committee hearing, cited the “tremendous potential” of advanced nuclear reactors and noted that shuttered coal plants could provide ready potential sites for the deployment of that technology.
West Virginia’s Democratic senator, Joe Manchin, is also exploring the potential to use advanced nuclear technology in the state at retired coal plants. And during an April Atlantic Council event, Manchin and Jeff Lyash, president and CEO of the Tennessee Valley Authority, both voiced support for deploying small modular reactors at retired coal plants.
Last January, the Utah Associated Municipal Power Systems signed agreements with NuScale Power to facilitate to deploy NuScale’s small modular reactors at the Idaho National Laboratory.
In Washington, the Grant County Public Utility District with Energy Northwest and X-energy have signed a memorandum of understanding for the development of an advanced nuclear reactor demonstration project.
Maine Governor Unveils Legislation That Opens Door To Consumer-Owned Utility Option
February 14, 2022
by Paul Ciampoli
APPA News Director
February 14, 2022
Maine Gov. Janet Mills on Feb. 2 unveiled legislation that, among other things, opens the door for state utility regulators to evaluate whether an investor-owned utility or a consumer-owned utility is in the best interests of the state.
The legislation establishes a process under which the Maine Public Utilities Commission (PUC) determines whether an electric utility is unfit to provide safe, adequate, and reliable service at just and reasonable rates to Maine ratepayers.
If the PUC determines that sale of the utility is necessary to protect the interests of ratepayers, it will then invite bids from qualified buyers and select the purchase proposal that provides the most benefits to customers in the form of better service and lower rates at a fair purchase price.
Additionally, the legislation stipulates that, in the event the PUC invites bids from qualified buyers, it must also consider a bid to create a consumer-owned, quasi-municipal corporation for the purpose of purchasing the utility.
This creates a mechanism whereby the PUC could evaluate whether an investor-owned utility or a consumer owned utility is in the best interests of the State.
The bill also requires that the PUC establish minimum standards of service that utilities must deliver for Maine ratepayers. The legislation also empowers the PUC with enhanced authority to crack down on utilities that do not meet these standards by imposing harsher penalties and, if necessary, even forcing the sale of the utility for inadequate service.
The legislation was developed by the Governor’s Energy Office in conjunction with Maine’s new Public Advocate Bill Harwood.
The legislation further requires the PUC to set minimum standards for safe, reasonable, and adequate service to Maine customers.
It then requires the PUC to issue quarterly reports on whether a utility is meeting these minimum standards. These reports will address utility operations, customer service, such as billing, and initiatives to combat climate change, such as interconnecting to solar projects.
If these quarterly reports determine that a utility is consistently failing to meet this standard, then the legislation requires the PUC is to impose new, higher administrative penalties — up to $1 million or 10 percent of the utility’s annual revenue — to force the utility to improve service.
“This new approach establishes an ongoing system of review by the PUC that is a transparent and an alternative accountability mechanism to traditional utility oversight,” according to the governor’s office.
In addition, the bill provides for periodic audits for Maine’s distribution and transmission utilities to ensure that the utility’s cost of providing service are consistent with the estimates used to set rates.
Whenever Maine’s utilities have gone more than five years without a rate case, the legislation requires the utility to make a filing with the PUC comparing its current actual expenses to the estimates used in previous rate cases. If the discrepancy is greater than 10 percent, the PUC may conduct a financial audit. This new mechanism allows the PUC to review the utility’s financial books and records outside of a traditional rate case.
The legislation will be considered by the Maine Legislature’s Energy, Utilities, and Technology Committee.
Maine Group Says Legislation Falls Short
In response to the legislation, Our Power, a Maine group working to create a statewide, consumer-owned utility, said the proposal falls short.
While the governor’s bill “is a start, more details are needed to provide a viable path for consumer ownership,” said former Deputy Director of the State Planning Office, Sue Inches. “To allow for this transformative change, which would offer democratic governance and capital at half the cost, the legislation needs to establish specific and sufficient timeframes, resources, guidance, and public process.”
Our Power has been collecting signatures for a ballot initiative that would create the Pine Tree Power Company, a locally-owned, not-for-profit electric utility for parts of Maine currently served by Central Maine Power and Versant.
Our Power recently acknowledged that it was unable to collect enough signatures for a ballot initiative this year and will continue to collect names for a 2023 attempt, according to an article in Maine’s Portland Press-Herald.
DOE To Provide $2.91 Billion To Boost Production Of Advanced Batteries
February 13, 2022
by Paul Ciampoli
APPA News Director
February 13, 2022
The U.S. Department of Energy (DOE) recently issued two notices of intent to provide $2.91 billion to boost production of advanced batteries, including for electric vehicles and energy storage, as directed by the bipartisan infrastructure law.
DOE intends to fund battery materials refining and production plants, battery cell and pack manufacturing facilities, and recycling facilities that create good-paying clean energy jobs.
The funding is expected to be made available in the coming months.
In June 2021, DOE published a 100-day review of the large-capacity-battery supply chain, pursuant to Executive Order 14017, America’s Supply Chains. The review recommended establishing domestic production and processing capabilities for critical materials to support a fully domestic end-to-end battery supply chain.
The infrastructure law allocates nearly $7 billion to strengthen the U.S. battery supply chain, which includes producing and recycling critical minerals without new extraction or mining, and sourcing materials for domestic manufacturing.
Funding from the law will allow DOE to support the creation of new, retrofitted, and expanded domestic facilities for battery recycling and the production of battery materials, cell components, and battery manufacturing.
The funding will also support research, development, and demonstration of second-life applications for batteries once used to power EVs, as well as new processes for recycling, reclaiming, and adding materials back into the battery supply chain.
Both forthcoming opportunities are aligned with the National Blueprint for Lithium Batteries, guidance released last year by the Federal Consortium for Advanced Batteries and led by DOE alongside the Departments of Defense, Commerce, and State. The blueprint details a path to ensuring a domestic battery supply and accelerating the development of a domestic industrial base by 2030.
Those interested in applying for the upcoming funding opportunities are encouraged to register to receive notifications about key dates within the application process by signing up for the Vehicle Technologies Office newsletter.
The notices are available here.
Click here for resources and opportunities for public power tied to the infrastructure law curated by the American Public Power Association.
Small Modular Reactor Project In Idaho Achieves Major Milestone
February 13, 2022
by Paul Ciampoli
APPA News Director
February 13, 2022
Carbon Free Power Project, LLC (CFPP), a wholly owned subsidiary of Utah Associated Municipal Power Systems, continues to advance the development and deployment of its first-of-a-kind small modular reactor nuclear plant at the U.S. Department of Energy’s Idaho National Laboratory near Idaho Falls, Idaho.
CFPP successfully and safely completed field investigation activities at the site in January 2022, a major milestone for the project.
In August 2021, CFPP initiated field activities at the CFPP site at Idaho National Laboratory.
This phase of field work involved detailed geotechnical surface and subsurface investigations to further characterize the geologic properties underlying the site and support the analysis of potential volcanic and seismic hazards.
It also established a groundwater monitoring network to support protection of the Eastern Snake River Plain Aquifer and commissioned an on-site meteorological monitoring station to collect site-specific atmospheric data.
Safety performance has been outstanding on the project through completion of the site investigation activities at the CFPP site, CFPP said.
In parallel with the completion of field work at the CFPP site, the project is also moving forward with the development of a combined license application in accordance with requirements of the U.S. Nuclear Regulatory Commission (NRC)
Analysis of the data collected from the site investigation efforts, as well as a two-year monitoring campaign, will be presented in the application to address key safety and environmental considerations associated with the siting and licensing for the reactor.
The application will also provide additional project specific facility design information, which will support the NRC’s safety and environmental reviews as well as public consultations.
Development of the combined license application is being managed by Fluor Corporation, under contract with CFPP, with support and technical expertise from NuScale Power.
The CFPP will deploy a NuScale power plant that is based on NuScale’s small modular reactor technology.
In addition to addressing the suitability of the site and the environmental impacts assessment, the combined license application will also present information related to the applicant’s qualifications and the facility security and emergency plans.
Completion of the combined license application and submittal to the NRC is scheduled for early 2024. Startup and commissioning of the CFPP is planned for 2029.
City Utilities Of Springfield, Mo., Partners With United Way For Plant Demolition Raffle Event
February 13, 2022
by Paul Ciampoli
APPA News Director
February 13, 2022
City Utilities Of Springfield, Mo., is partnering with United Way of the Ozarks for a raffle event with the winner detonating the implosion of power plant stacks.
After providing electricity to Springfield for over 60 years, the five generators inside James River Power Station have been retired and the stacks are coming down.
All proceeds from the raffle event, “Blasting for the Better,” will support United Way of the Ozarks.
Over the past few months, demolition crews have been removing exterior components of the partially retired power generation station with one of the final steps being to collapse the four stacks on the south side of the main building.
Details on the demolition, history of James River Power Station, and a schedule of the implosion, including safety requirements, will soon be available, the public power utility reported on Feb. 9.